Belmorgan Property Development Pty Ltd v GPT Re Ltd

Belmorgan Property Development Pty Ltd (Belmorgan) appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning the validity of a development consent granted by the Sydney Harbour Foreshore Authority (the Authority). The dispute centred on whether the Authority had validly delegated its power to determine a specific development application made by Belmorgan.

The central legal issues before the Court of Appeal were whether the Authority had the power to delegate its function of determining a particular development application, and if so, whether the purported delegation fettered the Authority's previously delegated power to determine development applications generally. The Court also considered the interplay between section 377 of the *Local Government Act 1993* (NSW) and sections 79C(1) and 80(1) of the *Environmental Planning and Assessment Act 1979* (NSW) in relation to the delegation of such powers.

The Court of Appeal affirmed the primary judge's reasoning, holding that the Authority possessed the power to delegate its functions under section 377 of the *Local Government Act 1993*. However, the Court found that the specific delegation in question, which purported to approve Belmorgan's development application, was invalid. This was because the delegation sought to approve a particular development application, thereby fettering the Authority's broader delegated power to determine development applications. The Court emphasised that a delegation of power must not be so specific as to amount to an exercise of the power itself, nor should it fetter the exercise of the delegated power in a manner inconsistent with the original delegation.

The appeal was dismissed, and Belmorgan was ordered to pay the costs of the appeal.